PETITIONER:
RAM BILAS SINGH & ORS.
Vs.
RESPONDENT:
THE STATE OF BIHAR
DATE OF JUDGMENT:
29/01/1963
BENCH:
ACT:
Criminal Trial-Unlawful assembly-Acquittal of accused-
Conviction of less than five-Legality of-Indian Penal Code,
s. 149.
HEADNOTE:
The facts alleged by the prosecution were these
The first appellant brought with him in a truck to the scene
of the occurrence a mob of 40 to 50 persons including the
other two appellants and four other persons who were
acquitted by the trial court. The first appellant fired a
shot from the gun which he was carrying which hit Laldeo
Singh on the chest as a result of which he fell down.
Thereupon none of the acquitted persons fired from his gun
and the shot hit Laldeo Singh again. Thereupon another of
the acquitted persons fired a shot at Laldeo Singh which.
killed him instantaneously. The first appellant fired two
shots at one Deva Singh who was hit on his thigh. The other
two appellants assaulted Deva Singh with lathis of the seven
persons charged, four were acquitted. The appellants were
convicted under s. 304 Part II read with s. 149 of the
Indian Penal Code by the trial court. On appeal the High
Court altered their conviction into one under s. 326 read
with s. 149 of the Indian Penal Code but maintained the
convictions under S. 147 and s. 426 of the Indian Penal
Code. It was contended before the Supreme Court that as
there was no appeal before the High Court against the
acquittal of the four acquitted persons who were alleged to
have constituted the unlawful assembly along with the
appellants there could be no finding that there was an
unlawful assembly of which appellants were members and
therefore, were liable, for the acts of other members
776
thereof and that an accused person cannot be held liable
vicariously for the act of an acquitted person.
Held, that even assuming that the fatal in juries were
caused to Laldeo Singh by one of the four acquitted persons,
it was not open to the High Court to hold any of the
appellants liable for that act by resort to s. 149 of the
Indian Penal Code.
Held, further that the legal position deducible from the
authorities was (i) that it is competent to a court to come
to the conclusion that there was an unlawful assembly of
five or more persons, and actually convict less than that
number for the offence if (a) the charge states that apart
from the persons named, several other unidentified persons
were also members of the unlawful assembly whose common
object was to commit an unlawful act and the evidence led to
prove this is accepted by the court ; (b) or that the first
information report and the evidence shows such to be the
case even though the charge does not state so ; (c) or that
though the charge and the prosecution witnesses named only
the acquitted and the convicted accused persons there is
other evidence which discloses the existence of named or
other persons provided that in cases (b) and (c) no
prejudice has resulted to the convicted person by reason of
the omission to mention in the charge that the other unnamed
persons had also participated in the offence.
Harchandra v. Rex. I.L.R. (1951) 2 All. 62, approved.
To pandas v. State of Bombay, [1935] 2 S.C.R. 881, R. v.
Plummer, [1902] 2 K.B. 339, Bharwad Mepa Dana v. State of
Bombay, [1960] 2 S.C.R. 172, Kartar Singh v. State of
Punjab, [1962] 2 S.C.R. 395, Dalip Singh v. State of Punjab,
[1954] S.C.R. 145, Sunder Singh v. State of Punjab [1962]
Supp. 2 S.C.R 634, Mohan Singh v. State of Punjab, [1962]
Supp. 3 S.C.R. 848, and Krishna Govind Patil v. State of
Maharashtra, [1964) Vol. 1 S.C.R. 678, referred to.
Held, also that the High Court had failed to determine
material questions necessary for property deciding the case,
namely that it had not fully examined the evidence to come,
to a definite conclusion as to whether there was an unlawful
assembly or not consisting of persons other than the
acquitted persons and that the High Court had also failed to
ascertain the particular act committed by any member or
members of that assembly in furtherance of the common object
as also whether any of the appellants had participated in,
the said incident.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 73 of
1961.
777
Appeal by special leave from the judgment and order dated
November 3, 1960 of the Patna High Court in Criminal Appeal
No. 326 of 1958.
Jai Gopal Sethi, C.L. Sareen and R. L. Kohli, for the
appellants.,
S.P. Varma, and R. N. Sachthey, for respondent.
1963. January 29. The judgment of the Court was delivered
by
MUDHOLKAR, J.-This is an appeal by special leave from a
judgment of the High Court of Patna altering the conviction
of the appellants under s. 304, Part 11 read with s. 149 of
the Indian Penal Code into convictions under s. 326 read
with s. 149, I.P.C. but maintaining the sentences and
affirming the convictions under s. 147 and s. 426, I.P.C. as
well as the sentences awarded in respect of those offences.
The prosecution case was that there was a dispute between
Ram Bilas Singh of Shahpore and, his two sons Ram Naresh
Singh and Dinesh Singh on the one hand (appellants before
us) and Deva Singh (P. W. 2) and his brothers on the other
with respect to a Dochara in a village Dihara. On April 22,
1957, at about 9.00 a.m. while Deva Singh, along with his
brother Laldeo Singh, the deceased and two other persons
Dhunmun Singh (P. W. 4) and Dasain Hajam were sitting in
the Dochara the appellant No. 1 Ram Bilas Singh arrived
there in a truck with a mob of 40 to 50 persons which
included the other two appellants before us, besides four
other persons who were acquitted by the trial court. Ram
Bilas Singh is said to have fired from the gun which he was
carrying which hit Laldeo Singh on the chest as a result of
which he fell down, but got up later.
778
Thereupon Ramdeo Singh (acquitted by the trial court) fired
from his gun and the shot hit Laldeo Singh on the chest and
he fell down again. After that, Ram Bilas Singh Gumasta of
Dihara (acquitted by the trial court) fired a second shot’
from his gun hitting Laldeo Singh on the abdomen and killing
him instantaneously. The appellant Ram Bilas Singh is
further said to have fired two shots at Deva Singh hitting
him on his right thigh. Appellants Ram Naresh Singh and
Dinesh Singh are said to have assaulted Deva Singh with
lathis as a result of which he fell down and thereafter the
mob proceeded to dismantle the Dochara by demolishing its
mud pillars, as a result of which its thatched roof fell
down. Having achieved their object, the mob is said to have
left the place, taking away along with them a palang, a
bamboo cot, two quilts, one lantern and one garansa.
The incident attracted it number of villagers to the spot
including jagdish Singh, Bhagwat Singh (since dead) and
Ajodhya Singh. After report was lodged of the incident, the
police arrived on the spot, held the panchnama (inquest) on
the body of Lal Deo Singh and followed the’ usual procedure.
A starch was made for the seven accused persons, including
the appellants, but it took some time to find them out and
arrest them. Eventually, they were placed before a
magistrate who committed them for trial for offences under
s. 148, s. 302 read with s. 149 and s. 426, I.P.C., the
appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh
Gumasta of Dihara were specifically charged with offences
under s. 302, I.P.C. for having committed the murder of
Laldeo Singh. Ram Bilas Singh was further charged under s.
307 of the Indian Penal Code for attempt to commit the
murder of Deva Singh while Ram Naresh Singh and Dinesh Singh
(appellants 2 and 3) were further charged with offences
under s. 323, I.P.C. for assaulting Dhunmun Singh (P. W.
4). The court of
779
Session acquitted both Ram Bilas Singh as well as Ramdeo
Singh of the offence under s. 302, I. P.C. and also
acquitted all the seven accused persons of the offence under
s. 302 read with s. 149, I.P.C. It, however, convicted the
three appellants before us under s. 304, second part, read
with s. 149 of the I.P.C. and under ss. 147 and 426, I.P.C.
but acquitted the appellants 2 and 3 of the offence under s.
323, I.P.C.
Briefly stated, the defence of the three appellants was that
the appellant Ram Bilas Singh was in possession of the
dochara, that it was Laldeo Singh and Deva Singh who
threatened to dismantle the dochara and, therefore, they
marched there on the date of the incident at the head of a
mob consisting of 15 or 20 persons carrying with them
various weapons. During the incident, Laldeo Singh and Deva
Singh are said to have flourished their farsis and gandasas
while some other members of their party are said to have
used their lathis and spears as a result of which four
persons on the side of the appellants received injuries. In
the meantime, in self-defence, one Ram Lakhan Singh (since
deceased) fired a shot from his gun and ran away. This shot
is said to have hit Laldeo Singh and also Deva Singh. After
being injured in this manner, Laldeo Singh is said to have
dropped down dead and then the mob dispersed.
The defence of the appellants that they were in possession
of the dochara and that Laldeo Singh and Deva Singh were the
aggressors has been rejected by both the courts below and
Mr. Sethi who appears for the appellants has not even sought
to controvert the finding on that point. His contention,
however, is that the appellants having been acquitted of the
offence under s. 302 read with s. 149, 1. P. C. and
appellant No. 1 having been acquitted of the offences under
s. 302 and s. 307, I.P.C. none of them could
780
be convicted under s. 326 read with s. 149, I.P.C. Learned
counsel points out that the clear case of the prosecution in
the charge sheet was against seven named persons i.e., the
three appellants before us, Ram Bilas Singh Gumasta of
Dihara, Sudarshan Singh son of Ram Bilas Singh Gumasta,
Ramdeo Singh and Sakal Singh sons of Raghoo Singh and
contends that out of these, four persons having been
acquitted, the remaining three persons could not be said to
have been members-of an unlawful assembly and, therefore,
they could neither e convicted under s. 147 I.P.C. nor could
they be convicted of any other offences with the aid of s.
149, I. P.C. All that it was competent for the court to do
was to convict each of them for their individual acts and no
more. Learned counsel further contends that without setting
aside the acquittal of the four alleged associates of the
appellants, there could be no finding to the effect that
there was an unlawful assembly of which the appellants were
members and were, therefore, liable for the acts of other
members thereof. Further, it was urged by learned counsel
that an accused person cannot be held liable vicariously for
the act of an acquitted person and, therefore, even assuming
that the fatal injuries were caused to Laldeo Singh by one
of the four acquitted persons, it was not open to the High
Court to hold any of the appellants liable for that act with
the aid of s. 149, I.P.C.
Learned counsel relied upon a passage in the judgment of
Agarwala J., in Harchanda v. Rex which reads thus :
“Now in a criminal case the burden of proof is
always on the prosecution. It is for the
prosecution to establish the responsibility of
the accused for the crime alleged. Having
regard to the fact that there is no appeal
against the acquittal of the other five
accused before us, and having regard to the
fact that we cannot
(1)I.L.R. (1951) 2 All. 62, 73.
781
interfere with the finding of the learned
Sessions judge, so far as it concerns those
accused, we cannot hold that either Durga Das
or Sukhbir was responsible for inflicting the
incised wounds: and since it was not the
prosecution case that there was some unknown
person along with the accused, who was also
holding a sharp-edged weapon,- we cannot
ascribe the infliction of the incised wounds
to some such unknown person. The result of
the prosecution evidence, taken with the
findings of the learned Sessions judge, is
that the prosecution is unable to explain the
infliction of the incised wounds. in my
opinion in such a case the accused cannot be
held constructively liable for the infliction
of those wounds.”
There is no doubt that the High Court has observed in its
judgment under appeal that Laldeo Singh was killed -as a
result of one of the shots fired at him by Ram Bilas Singh
Gumasta who was acquitted by the court of Session. We may
quote the observations made by it in this regard. They are
“It seems, as I shall show hereafter, the
trial court was greatly prepossessed in favour
of Ram Bilas Singh of Dihara, and therefore it
ruled out without disbelieving the evidence,
the possibility of Laldeo Singh having been
killed by the third shot fired by Rambilas
Singh of Dihara. It is admitted that the two
Rambilas Singh and Ramdeo Singh have each held
a licensed gun empty cartridge…….These
guns and the which had been found by P W. 21
at the place of occurrence were examined by
the Fire Arms Expert The trial court has
explained away this very strong piece of
evidence of unimpeachable character,
supporting the version of the witnesses
782
that Rambilas Singh of Dihara had fired one
shot from his gun, on a very flimsy ground.”
Then the High Court observed that the evidence of the
ballistic expert was disregarded by the Court of Session on
flimsy grounds. The point, however, is that the High Court
has come to the conclusion that the shot which resulted in
the death of Laldeo Singh was fired by an acquitted person.
If the view taken by the Allahabad High Court is correct
then it would follow that it was not open to the High Court
before which the acquittal of Rambilas Singh Gumasta was not
challenged., to reassess the evidence with regard to him and
hold that it was he who had caused the death of Laldeo
Singh.
We will deal with the decision of the Allahabad High Court
presently, but we must refer to certain decisions of this
court to which reference was made during arguments.
In Topandas v. The State of Bombay (1), this court has held
‘that where four named individuals were charged with having
committed an offence of criminal conspiracy under s. 120-B,
I.P.C. and three out of those four were acquitted of that
charge, the fourth accused could not be held guilty of the
offence of criminal conspiracy. In support of this view,
this court ha-, relied upon a passage in Archbald’s Criminal
Pleading, Evidence and Practice (33rd edn.p. 201, paragraph
361) which reads thus
“Where several prisoners are included in the
same indictment, the jury may find one guilty
and acquit the others, and vice versa. But if
several are indicated for a riot, and the jury
acquit all but two, they must acquit those two
also, unless it is charged in the indictment
and proved, that they committed the riot
together with some other person not tried upon
that
(1) [1955]2 S.C.R. 881.
783
indictment. 2 Hawk c. 47 s. 8. And, if upon an
indictment for a conspiracy, the jury acquit
all the prisoners but one, they must acquit
that one also, unless it is charged in the
indictment, and proved, that he conspired with
some other person not tried upon that
indictment.”
This court has also quoted with approval a passage from the
judgment in R. v. Plummer (1), which is one of the decisions
on which the above ‘passage is founded.
In Bharwad Mepa Dana v. State of Bombay (2), this court had
to consider the correctness of the conviction of three
persons under s. 302 read with s. 149 I.P.C. when one other
person who had been convicted by the Sessions judge of a
similar offence had been acquitted by the High Court. It
may be mentioned that originally twelve persons were named
in the charge and it was alleged that they had formed an
unlawful assembly with the common object of murdering
certain persons. Seven of them were acquitted by the
Sessions judge and only five were convicted under s. 302
read with s. 149, I.P.C. The High Court, while acquitting
one of the five persons, convicted by the Sessions Judge,
held that there were ten to thirteen persons in the unlawful
assembly though the identity of all the persons except four
had not been established, that all these persons had the
common object and the common intention of killing the
victims and that the killing was done in prosecution of the
common object of the unlawful assembly and in’ furtherance
of the common intention of all. Upon these facts, this
court held that the appellants before it were rightly
convicted under s. 302 read with s. 149, I.P.C., and that
there was nothing in law which prevented the High Court from
finding that the unlawful assembly consisted of the four
convicted persons and some unidentified persons, who,
(1) [1902] 2 K.B 339.
(2) [1960] 2 S.C.R. 172, 181.
784
together numbered more than five. This court further
observed :
embark on a discussion as to the legal effect
of the acquittal of nine of the accused
persons, except to state that we may proceed
on the footing that the acquittal was good for
all purposes and none of those nine persons
can now be held to have participated in the
crime so that the remaining four persons may I
be held guilty under s. 149 Indian Penal
Code.”
It is on the above observations that reliance has been
placed by Mr. Sethi. He contends that the High Court was
wrong in observing that Laldeo Singh was killed as a result
of a shot fired at him by Ram Bilas Singh Gumasta and that
he has escaped the charge. of murder as he was acquitted by
the Sessions judge..
Then, there is the decision of this court in Kartar Singh v.
State of Punjab (1), where this court has held that if the
trial court can legally find that the actual number of
members in the assailants party was more than five, that
party will in law constitute an unlawful assembly even
though ultimately three of the accused persons are
convicted. It has further held that it is only when the
number of the alleged assailants is definite and all of them
are named and the number of persons found to have taken part
in the incident is less than five, it cannot be held that
they formed an unlawful assembly. Then this court observed
“The acquittal of the remaining named persons
must mean that they were not in the incident.
The fact that they were named, excludes the
possibility of other persons to be in the
appellant’s party and especially when there be
no occasion to think that the witnesses naming
all
(1) [1962] 2 S.C.R. 395. 399.
785
the accused could have committed mistakes in
recognising them.”
In support of the above conclusion, reliance was placed by
this court upon the decision of this court in Dalip Singh v.
State of Punjab (1).
In Sunder Singh v. State of Punjab (2) , also this court has
considered the effect of the acquittal of some persons of
the offence under s. 302 read with s. 149, I.P.C. on the
conviction of the remaining persons who numbered less than
five. In dealing with this matter it has observed :
Cases sometimes arise where persons are
charged with being members of an unlawful
assembly and other charges are framed against
them in respect of offence committed by such
an unlawful assembly. In such cases; if the
names of persons constituting the unlawful
assembly are specifically and clearly recited
in the charge and it is not suggested that any
other persons known or unknown also were
members of the unlawful assembly, it may be
that if one or more persons specifically
charged, are acquitted, that may introduce a
serious infirmity in the charge in respect of
the others against whom the prosecution case
may be proved. It is in this class of cases,
for instance, that the principle laid down in
the case of Plummer may have some relevance.
If out of the six persons charged under s. 149
of the Indian Penal Code along with other
offences, two persons are acquitted, the
remaining four may not be convicted because
the essential requirement of an unlawful
assembly might be lacking.”
Upon the facts of the case before it, this court held that
the principle set out in Plummer’s case (3),
(1) [1954] S.C.R. 145. (2) [1962] Supp. 2 S.C.R. 654. 663.
(3) [1902] 2 K B. 339.
786
and which has been accepted by this court in Topan Das’s
case (1), did not apply to the case before it. This court
then proceeded to consider the powers of the court of appeal
under s. 423 (1) (a) of the Criminal Procedure Code and
observed that if in dealing with a case before it, it became
necessary for the High Court to deal indirectly or
incidentally with the case against the acquitted accused, it
could well do so and there is no legal bar to such a course.
Upon the view we are taking it is unnecessary to express any
opinion as to whether the interpretation placed in this case
upon the ambit of the powers under s. 423, Cr. P. C. is
consistent with the principle in Plummer’s case (2).
Finally, there is the decision of this court in Mohan Singh
v. The State of Punjab (3), where a similar question arose
for consideration. There, this court, after pointing out
that where five or more persons are shown to have formed an
unlawful assembly, the mere fact that less than that number
are actually tried for the offence committed by the assembly
and convicted of that offence would not necessarily render
their conviction illegal, because other persons may not have
been available for trial or may not be properly identified
or for some other reason. This court has observed :
“…………. In such cases, if both the
charge and the evidence are confined to the
persons named in the charge and out of the
persons so named two or more are acquitted
leaving before the court less than five
persons to be tried, then s. 149 cannot be
invoked. Even in such cases. it is possible
that though the charge names five or more
persons as composing an unlawful assembly,
evidence may nevertheless show that the
-unlawful assembly consisted of some other
persons as well who were not identified and so
not named. In such cases, either the trial
court
(1) [1955] 2 S.C.R. 881. (2) [1902] 2 K.B.
339.
(3) [1962] supp. 3 S.C.R. 848, 858.
787
or even the High Court in appeal may be able
to come to the conclusion that the acquittal
of some of the persons named in the charge and
tried will not necessarily displace the charge
under s. 149 because along with the two or
three persons convicted were others who com-
posed the unlawful assembly but who have not
been identified and so have not been named.
In such cases, the acquittal of one or more
persons named in the charge does not affect
the validity of the charge under s. 149
because on the evidence the court of fact is
able to reach the conclusion that the persons
composing the unlawful assembly nevertheless
were five or more than five.”
The decisions of this court quoted above thus make it clear
that where the prosecution case as set out in the charge and
as supported by the evidence is to the effect that the
alleged unlawful assembly consists of five or more named
persons and no others, and there is no question of any
participation by other persons not identified or
identifiable it is not open to the court to hold that there
was an unlawful assembly unless it comes to the definite
conclusion that five or more of the named persons were
members thereof. Where, however, the case of the
prosecution and the evidence adduced indicates that a number
in excess of five persons participated in the incident and
some of them could not be identified, it would be open to
the court to convict less than five of the offence of being
members of the unlawful assembly or convict them of the
offence committed by the unlawful assembly with the aid of
s; 149, 1. P. C. provided, it comes to the conclusion that
five or more persons participated in the incident. Again,
it is clear from these decisions that when a person has been
acquitted of an offence, his acquittal will be good for all
purposes when the incident in connection with which he was
implicated comes up for consideration before
788
the High Court in appeal by a person or persons who were
tried along with him and convicted of some offence with the
aid of s. 149, I. P. C. Sunder Singh’s case (1), has carved
out an exception to this rule to the effect that the High
Court can, under s. 423, Cr. P. C. consider incidentally
the question whether the acquitted person was a member of
the unlawful assembly for the purpose of determining the
case of the appellants before it. As already pointed out it
is not necessary in this case to say whether such an
exception can be recognised consistently with the principle
in Plummer’s case (2) which has so far been uniformly
accepted by this court.
We have had occasion to consider recently in Krishna Govind
Patil v. The State of Maharashtra (3), the effect of the
acquittal of person-. who were tried along with the persons
convicted of an offence under s. 302 read with s. 3 t. One
of us (Subba Rao. J.) speaking for the court, has observed
“It is well settled that common intention
within the meaning of the section implied a
pre-arranged plan and the criminal act was
done pursuant to the pre-arranged plan. The
said plan may also develop on the spot during
the course of the commission of the offence;
but the crucial circumstance is that the said
plan must precede the act constituting the
offence. If that be so, before a court can
convict a person under s. 302, read with s. 34
of the Indian Penal Code, it should come to a
definite conclusion that the said person had a
prior concert with one or more other persons,
named or unnamed,’ for committing the said
offence. A few illustrations will bring out
the impact of s.34 on different situations.
(i) A, B, C and D are charged under s. 302,
read with s. 34 of the Indian Penal Code,
(1) [1962] Supp. 2 S.C.R. 654, 663. (2)[1902]
2 K B. 339.
(3 [1964] Vol. 1 S.C.R. 678.
789
for committing the murder of E. The evidence
is directed to establish that the said four
persons have taken part in the murder.
(2) A, B, C and D and unnamed others arc
charged under the said sections. But evidence
is adduced to prove that the said persons,
along with others, named or unnamed,
participated jointly in the commission of that
offence.
(3) A, B, C and D are charged under the said
sections. But the evidence is directed to
prove that A, B, C and D, along with 3 others,
have jointly committed the offence.
As regards the third illustration a Court is certainly
entitled to come to the conclusion that one of the named
accused is guilty of murder under s. 302, read with s. 34 of
the Indian Penal Code, though the other three named accused
are acquitted, if it accepts the evidence that the said
accused acted in concert along with persons, named or
unnamed, other than those acquitted, in the commission of
the offence. In the second illustration, the Court can come
to the same conclusion and convict one of the named accused
if it is satisfied that no prejudice has been caused to the
accused by the defect in the charge. But in the first
illustration the Court certainly can convict two or more of
the named accused if it accepts the evidence that they acted
conjointly in committing the offence. But what is the
position if the Court acquits 3 of the 4 accused either
because it rejects the prosecution evidence or because it
gives the benefit of doubt to the said accused? Can it
hold, in the absence of a charge as well as evidence, that
though the three accused are acquitted, some other
unidentified persons acted
790
conjointly along with one of the named per-
sons? If the Court could do so, it would be
making out a new case for the prosecution : it
would be deciding contrary to the evidence
adduced in the case. A Court cannot obviously
make out a case for the prosecution which is
not disclosed either in the charge or in
regard to which there is no basis in the
evidence. There must be some foundation in
the evidence that persons other than those
named have taken part in the commission of the
offence and if there is such a basis the case
will be covered by the third illustration.”
What has been held in this case would apply also to a case
where a person is convicted with the aid of s. 149, Indian
Penal Code instead of s. 34. Thus all the decisions of this
court to which we have referred make it clear that it is
competent to a court to come to the conclusion that there
was an unlawful assembly of five or more persons, even if
less than that number have been convicted by it if (a) the
charge states that apart from the persons named, several
other unidentified persons were also members of the unlawful
assembly whose common object was to commit an unlawful act
and evidence led to prove this is accepted by the court; (b)
or that the first information report and the evidence shows
such to be the case even though the charge does not state
so, (c) or that though the charge and the prosecution wit-
nesses named only the acquitted and the convicted accused
persons there is other evidence which discloses the
existence of named or other persons provided, in cases (b)
and (c), no prejudice has resulted to the convicted person
by reason of the omission to mention in the charge that the
other unnamed persons had. also participated in the offence.
Now, coming to the Allahabad High Court decision relied
upon, it is sufficient to say that the
791
observations made therein which have been quoted earlier
appear to be in consonance with the principle in Plummer’s
case (1), and thus affords support to the argument of
learned counsel.
Applying the law as set out above, we must find out whether
what the High Court has done in this case is right. In the
first place, though it was vaguely stated by some of the
witnesses examined in the case that 40 or 50 persons took
part in the incident including the 7 persons mentioned in
the first information report and the charge sheet, the
prosecution case throughout has been that only seven named
persons took part in the incident. Even the first
information report of Deva Singh (P. W. 2), one of the
injured persons, mentions only the seven persons who were
placed for trial and no other. There is no suggestion
therein that any other persons took part in the incident.
The Court of Session, however, without discussing the point
and without finding as to how many persons were members
thereof, has come to the conclusion that there was an
unlawful assembly, the common object of which was to dis-
mantle the Dochara and assault Laldeo Singh and Deva Singh.
The High Court has proceeded more or less on the assumption
that there was an unlawful assembly, only some members of
which were put up for trial, four of whom were acquitted and
three convicted. It was necessary for the High Court to
consider whether the statements of some of the witnesses
that the unlawful assembly consisted of many more than seven
persons are true or whether they should be rejected in view
of the fact that the first information report shows that
only seven persons who were named therein, committed the
offence. It had also to consider the further question of
prejudice by reason of the defect in the charge. Upon the
law as stated by this court in Mohan Singh’s case (2) and in
other cases it would have been competent to the High Court
to look into the entire evidence in
(1) [1902] 2 K.B. 339.
(2) [1962] Supp. 3 S.C.R. 848, 858.
792
the case, oral and documentary, and consider whether there
was an unlawful assembly or not. But it has not done so.
Had the High Court, come to a reasoned conclusion that there
was an unlawful assembly consisting of more than five
persons, including the appellants and some other persons who
were unidentified and convicted the appellants under s. 147
and, with the aid of s. 149, also of some other offence
committed by a member or members of the unlawful assembly
other than the acquitted persons the matter would have stood
on a different footing. But it has not done so. It is
clear from its judgment that the High Court was not satis-
fied by the manner in which the case had been dealt with by
the Court of Session; but then, it should not have stopped
there. Instead, it should have fully examined the evidence
and come to a definite conclusion as to whether there was an
unlawful assembly or not hadstated its reasons for coming
to such a conclusion.It should then have ascertained the
particularacts committed by any member or members of
that assembly in furtherance of the common object as also
the question whether any of the appellants had participated
in the incident. In the light of its findings on these
matters the High Court should then have proceeded to
consider whether all or any of the appellants could be held
liable vicariously for all or any of the acts found to have
been committed by the unlawful assembly or any member or
members thereof other than those alleged to have been
committed by persons whose acquittal has become final. It
is a matter of regret that the High Court has failed to
determine questions which it was essential for it to
determine. We, therefore, set aside that judgment and send
back the case to the High Court for deciding it afresh.
Appeal allowed.
Case remanded.
793